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Court of Criminal Appeal 3 November 2023

Russell v R

[2023] NSWCCA 272

Assault & violenceHomicide
CRIME APPEALS APPEAL AGAINST CONVICTION FEMALE GENITAL MUTILATION PRINCIPLES OF STATUTORY INTERPRETATION PURPOSIVE CONSTRUCTION

Citation: Russell v R [2023] NSWCCA 272
Court: NSW Court of Criminal Appeal
Date: 3 November 2023
Judges: Bell CJ; Stern JA; N Adams J

Background

The appellant was an extreme body modification artist, not a medical practitioner, who performed invasive procedures at tattoo and body modification studios on the Central Coast and in Newcastle. Following a judge-alone trial in the District Court, he was convicted on three counts: female genital mutilation (Count 1), grievous bodily harm with intent (Count 2), and manslaughter by criminal negligence (Count 3). He was sentenced to an aggregate term of 10 years imprisonment with a non-parole period of 7 years and 6 months.

Count 1 arose from a cosmetic labiaplasty performed on a consenting adult woman in January 2015. Count 2 arose from an abdominoplasty performed on another consenting adult woman in November 2016, which caused serious adverse outcomes requiring emergency surgery. Count 3 arose from the insertion of a silicone implant into a third person's hand in March 2017, followed by a second procedure in April 2017. That third person died in the early hours of 12 April 2017.

The appellant appealed against all three convictions and against the severity of his sentence. The central questions on appeal involved the proper scope of the female genital mutilation provisions in the Crimes Act, the role of consent in grievous bodily harm offences, and whether the manslaughter conviction could be sustained given the complexity of the causation evidence.

  • Whether s 45(1) of the Crimes Act 1900 (NSW), which prohibits female genital mutilation, applies only to procedures performed on female children in a ritualistic context, or whether it extends to cosmetic procedures performed on consenting adult women
  • Whether consent is a defence to a charge of inflicting grievous bodily harm with intent under s 33(1)(b) of the Crimes Act
  • Whether the manslaughter verdict was unreasonable given the evidence, including expert disagreement about whether the deceased died from septicaemia, multi-drug toxicity, or a combination of both
  • Whether the trial judge failed to apply the correct standard of proof when finding that septicaemia was a significant or substantial cause of death
  • Whether the aggregate sentence of 10 years was manifestly excessive, having regard in particular to the complainants' consent to the procedures

Decision

Count 1 (female genital mutilation): The Court allowed the appeal on this count and entered a verdict of acquittal. The majority decision of the High Court in The Queen v A2 (2019) 269 CLR 507 had stated, in terms described by the Court of Criminal Appeal as "seriously considered dicta," that the purpose of s 45 was the protection of children from genital mutilation carried out for traditional or ritualistic reasons. The Court found that this characterisation of the section's purpose, though expressed as obiter, required s 45 to be read as not extending to procedures performed on consenting adult women for cosmetic reasons. The Court acknowledged that, absent those High Court statements, the plain text of s 45 would have supported conviction.

Count 2 (grievous bodily harm with intent): The appeal on this count was dismissed. The Court confirmed that consent is not a defence to a charge of inflicting grievous bodily harm. Following long-established common law principles, a person cannot consent to the infliction of serious bodily injury in circumstances that do not attract a recognised exception, and arguments grounded in personal autonomy did not alter that position.

Count 3 (manslaughter by criminal negligence): The appeal on this count was also dismissed. The Court found that the evidence was capable of supporting the trial judge's conclusions that the appellant's conduct was criminally negligent and that septicaemia was a significant or substantial cause of death. The expert evidence, though contested and complex, was sufficient to ground those findings beyond reasonable doubt. The Court also rejected the argument that the trial judge had failed to apply the correct standard of proof on causation.

Sentence: The Court found that the original sentence was manifestly excessive, primarily because the trial judge had not adequately taken into account the consenting adults' agreement to the procedures as a mitigating factor going to objective seriousness. The Court resentenced the appellant to an aggregate term of 7 years imprisonment with a non-parole period of 5 years and 3 months. The indicative sentences were 2 years and 3 months for Count 2 and 6 years and 6 months for Count 3.

Orders Made

  • Count 1: Appeal against conviction allowed; conviction quashed; verdict of acquittal entered
  • Counts 2 and 3: Leave to appeal granted on grounds 3, 4, 8 and 9; appeals against conviction dismissed
  • The aggregate sentence of 10 years imprisonment imposed by the District Court on 4 July 2022 was quashed
  • In its place, an aggregate sentence of 7 years imprisonment was imposed, commencing 15 September 2021 and expiring 14 September 2028, with a non-parole period of 5 years and 3 months expiring 14 December 2026
  • The appellant is first eligible for parole on 14 December 2026

Key Takeaways

  • Section 45 of the Crimes Act 1900 (NSW), despite its broad text, was held not to apply to cosmetic procedures performed on consenting adult women. The Court treated the High Court's statements in A2 about the section's child-protective purpose as authoritative "seriously considered dicta" requiring a reading-down of the provision, even though those statements were technically obiter.
  • Consent remains unavailable as a defence to charges of grievous bodily harm with intent under NSW law. The Court reaffirmed that personal autonomy arguments do not create a new exception to this principle.
  • In criminal negligence manslaughter, causation need not be established to the exclusion of all other contributing factors. Where septicaemia was found to be a significant or substantial cause of death, the possibility that multi-drug toxicity also contributed did not defeat the Crown case.
  • Where expert evidence on cause of death is genuinely contested, an appellate court will not substitute its own assessment for that of the trial judge in a judge-alone trial unless the verdict was one that was not reasonably open on the evidence.
  • Consent by a victim to a body modification procedure is a relevant mitigating factor at sentencing, going to the objective seriousness of the offence. The Court found that inadequate weight given to consent contributed to an aggregate sentence that was manifestly excessive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(b), 33(1)(b), 45
- Crimes Amendment (Female Genital Mutilation) Act 2014 (NSW)
- Crimes (Female Genital Mutilation) Amendment Act 1994 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A, s 44(2A)
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 25C
- Interpretation Act 1987 (NSW), s 33

Key Cases:
- The Queen v A2 (2019) 269 CLR 507
- A2 v The Queen [2018] NSWCCA 174
- Attorney-General's Reference (No 6 of 1980) [1981] QB 715
- CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
- Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1
- Dansie v The Queen [2022] HCA 25
- DL v The Queen (2018) 265 CLR 215
- Filippou v The Queen (2015) 256 CLR 47
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89